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News for, and by, our local legal community, curated and created by the Santa Clara County Bar. The opinions expressed in this blog are the authors' own and do not necessarily represent or reflect the views of the Santa Clara County Bar Association, its members, its employees, or its governing board.

 

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Labor & Employment News: Paid Sick Leave for All California Employees

Posted By Robert E. Nuddleman, Thursday, February 19, 2015

Originally posted on SCCBA Labor & Employment Section Blog 

by Robert E. Nuddleman 
Phillip J. Griego & Associates

On or after July 1, 2015, all employees (including part-time and temporary employees) earn paid time off for:

  1.  The Diagnosis, care, or treatment of an existing health condition of, or preventive care for an employee or an employee’s family member or
  2. Victims of domestic violence, sexual assault, or stalking to obtain restraining, to seek medical attention, to obtain services of a domestic violence shelter, program, or rape crisis center, to obtain psychological counseling, to participate in safety planning or to find temporary or permanent housing.

“Family Member” includes:

  1. A biological child, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis regardless of age or dependency status.
  2. A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
  3. A spouse.
  4. A registered domestic partner.
  5. A grandparent.
  6. A grandchild.
  7. A sibling.

Paid leave is earned according to the following terms and conditions:

  • The employee must work more than 30 days within a year of the commencement of employment or within a year of July 1, 2015, whichever is later.
  • The employee can earn up to 24 hours of paid sick leave in a calendar year.
  • The employee accrues paid sick days at the rate of one hour per every 30 hours worked. If the employee is an exempt employee, he or she accrues sick days based on their normal weekly work schedule or 40 hours per week, whichever is less.
  • An employee can use accrued paid sick days after 90 days of employment.
  • An employer can limit the use of paid sick days to 24 hours or three days in each year of employment.
  • Accrued paid sick days carry over to the following year of employment. However, the employer can impose a maximum cap of 48 hours or 6 days until sick leave is used.
  • An employer is not required to pay an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment. However, if rehired within one year of the date of separation, the employer must reinstate previously accrued and unused paid sick days.
  • The employer can require the employee to use paid sick leave in minimum increments of no more than two hours.
  • The rate of pay is the employee’s hourly wage at the time of the leave. If in the 90 days before taking accrued paid sick leave the employee had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay will be calculated by dividing total wages, not including overtime premium pay, by the total hours worked in the full pay periods of the prior 90 days of employment.
  • The employee must provide reasonable advance notice if the need for paid sick leave is foreseeable. If the need for paid sick leave is unforeseeable, the employee must provide notice of the need for the leave as soon as practicable.
  • The employee must receive payment for sick leave no later than the payday for the next regular payroll period after the sick leave was taken.
  • An employer cannot require the employee to find a replacement to cover the days during which the employee uses paid sick days.
  • An employer need not provide paid sick leave if it has a PTO policy that meets the minimum conditions and grants the same leave for the same purposes as this paid sick leave law.
  • The employee must receive written notice of accrued paid sick leave (or PTO an employer provides in lieu of paid sick leave) on an itemized wage statement or in a separate written notice provided to the employee with his or her wage statement.
  • The state can sue an employer for violations of the new law, seeking reinstatement, back pay, costs, attorneys’ fees, and penalties of up to $4,000 per employee per day.  Aggrieved employees can also sue the employer under the statute and on behalf of other “aggrieved employees” pursuant to the Labor Code Private Attorney General Act (“PAGA”)
  • Penalties include:
    • (1) the dollar amount of paid sick days withheld multiplied by three, or two hundred fifty dollars ($250), whichever amount is greater, not to exceed four thousand dollars ($4,000 and
    • (2) fifty dollars ($50) for each day the violation occurred or continued, not to exceed thousand dollars ($4,000).
  • The Labor Commissioner may file of a civil action to enforce its order and the employer may be ordered to pay to the state fifty dollars ($50) for each day or portion of a day a violation occurs or continues for each aggrieved employee.
  • In an administrative or civil action brought under this article, the Labor Commissioner or court, as the case may be, will award interest on all amounts due and unpaid.

Now is the time to prepare for this new law and to learn these new rights so that employees and employers alike will be informed come July 1st.

 

 

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High Technology News: Registering Trademarks with Customs in the United States and China

Posted By Christopher J. Bella, Thursday, February 19, 2015

This blog post has been cross posted from the High Technology Section Blog.  

By Christopher Bella

Edge Law Group, PC

 

By the end of 2015, the International Chamber of Commerce expects the global value of counterfeit goods to exceed $1.7 trillion (over 2% of the world's total current economic output), with almost 70% of such goods originating from China. In trying to protect against counterfeiting, practitioners often make the mistake of not registering their clients' intellectual property with countries' customs agencies. Merely relying on trademark registrations will not provide full protection.

For United State's registered trademarks, registration with U.S. Customs is completed by submitting an Intellectual Property Rights e-Recordation (IPRR) application online.

In China, of particular importance is registering trademarks with not only with the China Trademark Office (CTMO), but also with Chinese Customs (the General Administration of Customs or GAC for short). Registration with the GAC is not legally required, but provides the benefit of China Customs officials actively searching for infringing products. China Customs officials often only check outgoing shipments against the GAC database, although they have discretion to check the CTMO database. In reality, there is little to no enforcement by China Customs of trademark infringement without registration with the GAC. In addition, all GAC registrations are published in a centralized, open to the public database, which is frequently used by import/export companies to ensure that the products they are trading do not infringe intellectual property rights.

The following documents are required to register a trademark with the GAC:

  1. A copy of the company's certificate of incorporation; 

  2. A copy of the registration the company intends to record with the GAC.

While not explicitly required, it is recommended that the following are included:

  1. Pictures or samples of the company's products and packages bearing the mark or design; and 

  2. Names of all parties who are authorized or licensed to use the company's mark or design (if any).

The official fee for each registration is $120 and it normally takes two to three months for the GAC to complete the recording.

Practitioners will be remiss if they overlook registering their clients' intellectual property with countries' customs agencies when trying to combat counterfeiting. A simple registration can go a long way to protecting a client's interests.

 

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Volunteers Sought for Temporary Judge Program

Posted By Administration, Wednesday, February 18, 2015
The Superior Court of California, County of Santa Clara is seeking additional volunteers for the Temporary Judge program.  Under California Rules of Court, qualified and experienced attorneys may volunteer their time to serve as part of the Superior Court of California, County of Santa Clara's Temporary Judges' Program. Temporary judges are appointed and serve at the discretion of the Court. Attorneys must have been members of the California State Bar for at least ten years, must be a member of the State Bar in good standing, must not have pled guilty or no contest to a felony, and must satisfy the education and training requirements

Go to  the Temporary Judge Web Page for more information;  http://www.scscourt.org/general_info/jo/temp_judges.shtml. 
To contact the Temporary Judge Administrator with questions or for general information, please email 
TJP@scscourt.org

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Become an SCCBA Delegate - Upcoming Organizational Meeting on February 20, 2015

Posted By Shivadev S. Shastri, Tuesday, February 17, 2015

The Santa Clara County Bar Association is organizing its delegation to the 2015 Conference of California Bar Associations [otherwise known as the Conference of Delegates (website:www.calconference.org) which will be held in Anaheim, October 9-11 (Friday afternoon through Sunday mid-day) at the same time as the Annual Meeting of the State Bar.  The Conference of Delegates is an annual meeting of delegations from local and specialty bar associations intended to help refine and improve California laws, including laws dealing with family, corporate, real estate, criminal, labor, and probate matters, civil procedure, courts, and attorneys.  Proposed changes are debated, and changes approved by the Conference are submitted to the legislature and lobbied by the Conference's lobbyist.  The resolutions of SCCBA delegates have been enacted into law in the recent past.

 

We expect to have between 10 and 15 delegates this year.  Historically, including in 2014, SCCBA’s delegation has been an active, influential group during the Conference’s deliberations.  Joining the delegation is a great way to serve the profession and the people of California while expanding your legal knowledge and getting to know other attorneys from Santa Clara County and other parts of California.

 

Our delegation’s work is multi-phased, involving approximately 3-4 meetings during the year prior to the Conference.  Among our activities are preparation of our own resolutions, and review of and response to other delegations’ resolutions.  We plan to have meetings in February, May, and September.

 

There are no specific pre-requisites for becoming a delegate.  If you wish to join the SCCBA delegation, please contact Shiv Shastri (ph.: (650)428-1768; e-mail:  shivadevshastri@att.net; or Tiffany Taubodo at the Bar Offices [e-mail:tiffanyt@sccba.com).

 

Our first meeting of the year will occur at the Bar Offices on February 20, 2015, at noon.  Lunch will not be provided.  We look forward to seeing all interested Bar Association members at that meeting.

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Lack of money leaves California courtrooms in the dark

Posted By Administration, Friday, February 13, 2015

 

SACRAMENTO, Calif. (KCRA) —Visit the Sacramento County Courthouse on any given day and you may find empty hallways and dark courtrooms on some floors.

But the courtrooms haven't gone dark because of a lack of cases, it's because there aren't enough employees to conduct business.

"There's not a clerk to put in that courtroom, there's not a bailiff (or) an interpreter," Sacramento County Judge Steve White said. "That's what we need to fix."

White, a member of an advocacy group called the Alliance of California Judges, is critical of how the courts are managed by the judicial council, which oversees the personnel and the funding for all of California's courts.

White said he's had to sit idle in his chambers, giving extra cases to other judges, because he doesn't have the people to open his courtroom.

Nidal Albalbool is feeling the pinch of the cuts firsthand. Due to cuts in the number of bailiffs, interpreters and clerks, it will be almost a month before his civil lawsuit shows up in the court's computers.

Read the whole story at KCRA.COM

 

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State Bar disciplines former Yolo candidate for campaign mudslinging

Posted By Administration, Wednesday, February 11, 2015

The California State Bar, in a rare decision, disciplined former Yolo County prosecutor Clinton Parish for falsely accusing a sitting judge of a corporate bribery and fraud scheme during his unsuccessful 2012 bid for the Yolo judiciary.

Ruling in what it called a “case of first impression,” the State Bar Court said Parish showed “reckless disregard for the truth” in his failed 2012 campaign. The public reproval order goes into effect Feb. 26. Parish, 43, must undergo ethics training but can still practice law.

“We find Parish’s reckless statement implicating a judge with bribery requires public discipline to maintain the integrity of the legal profession and to preserve public confidence in the impartiality of the judiciary,” the State Bar Court Review Department said in a statement.

Floyd F. Feeney, a longtime UC Davis law professor who clerked for U.S. Supreme Court Justice Hugo Black, said he understood the sentiment behind the State Bar’s decision.

Read the whole story at SacBee

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Volunteers Sought for 2015-16 Civil Grand Jury

Posted By Administration, Wednesday, February 11, 2015

Santa Clara County residents are urged to apply for service on the Grand Jury. 

The Superior Court of California, County of Santa Clara has commenced its recruitment for volunteers to serve on the 2015-2016 Civil Grand Jury. 

 

WHY BECOME A GRAND JUROR?

Those who are called to serve on the Grand Jury are part of an independent arm of the Judicial Branch. They voluntarily enter this service with interest and curiosity in learning more about the administration and operation of the government in the county in which they live, in order to function as an investigatory body. The Civil Grand Jury are citizens who are willing to give their time for the betterment of the government which, in truth, belongs to them.

As part of the Judicial Branch of government, the Civil Grand Jury serves as the county’s investigatory body, and has the independent authority to examine all aspects of county and city government, school districts, and special districts. The Grand Jury is also statutorily empowered to inspect adult and juvenile detention facilities. Service on the Grand Jury affords citizens the unique opportunity to make a meaningful contribution to the efficiency and integrity of local government. Residents who have lived in the county for one year, are United States citizens, and are 18 years of age or older may apply for service. The Court is seeking applicants of all backgrounds who are willing to make the commitment of a one-year term.

 

WHAT IS THE GRAND JURY?

The U.S. Constitution’s Fifth Amendment and the California Constitution call for grand juries. The Grand Jury is a part of the Judicial Branch of government, and is responsible for three main functions:

  1. Civil Watchdog
  2. Citizen Complaints
  3. Accusations

 

COMMITMENT

Typically, Grand Jury service requires a time commitment of a minimum of 20-25 hours per week for a period of one fiscal year. Exact days and times are determined by each Civil Grand Jury. 

 

SELECTION

Superior Court Judges seek and interview volunteers to apply to serve on the Civil Grand Jury. Thirty prospective grand jurors are nominated from the pool of applicants, divided among the county’s supervisorial districts. Nineteen members are randomly chosen, and are sworn in and given a description of their duties 
and responsibilities by the Presiding Judge. 

Click to access the 2015-16 Civil Grand Jury Application Form. 

Individuals interested in applying may contact Tamara L. Davis, Deputy Manager of Jury Services, at 408-882-2721, or visit their website at www.scscourt.org. Inquiries may also be sent to CGJ@scscourt.org.

The deadline to submit an application for consideration for service is Friday, March 27, 2015. The 2015-2016 Civil Grand Jury will be selected and sworn in on Thursday, June 18, 2015 at 4 p.m. at the Old Courthouse located at 161 North First Street, San José, California.

Tags:  Grand Jury  Volunteer 

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PRESIDENT'S MESSAGE: We Need You

Posted By Administration, Wednesday, February 11, 2015

John L. Mlnarik
2015 SCCBA President
The Mlnarik Law Group, Inc.

 

The Santa Clara County Bar Association needs you to join if you are not a member already and get acquainted with all the wonderful opportunities at the SCCBA.

Develop your practice by creating your public directory listing, joining the lawyer referral service or visiting our career center.

Members subscribe to our Code of Professionalism and are sure to keep their nose clean with access to our Center for Ethics and Professionalism.

Reference our on-line CLE 24 hours a day, 7 days a week so you have enough “recognition and elimination of bias” before your reporting period and manage all of your CLE with our new CLE Management feature.

With all you can do on-line you many never need to leave your home or office again, but if you like us virtually, you’re going to love us live and in person. Attending events at the bar office allows you to meet other members and often times local judges. If you aren’t good at remembering names don’t worry. Just cruise the member directory or judicial profiles after an event to bone up on the who’s who.

Read more...


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Civil Practice News: Rule 4 Early Settlement Neutrals

Posted By Amy R. Carlson, Thursday, February 5, 2015

This blog post has been cross posted from the Civil Practice Committee Blog.  

Calling All Attorneys!!

If you practice in Santa Clara County and have appeared in the Superior Court, you may have been in need of a Rule 4 neutral.

Rule 4 Neutrals are provided by the court free of charge to the parties.  I handled at least 10 early settlement conferences in 2014 and I have no doubt there could be more cases out there that could benefit from a Rule 4 neutral.  

Rule 4 is similar to mediation in the sense that the parties are there to resolve the case. The best benefit for most cases is that the Early Settlement Conference is generally early.  The defense stops incurring the costs of litigation. The plaintiffs get resolution and on with their lives.  It's usually a benefit for both sides.

For the neutral, there's an unknown benefit---getting to know attorneys in the community or simply seeing old friends.

The reason I love being a neutral is seeing old friends from my insurance defense days.  Although I solely practice employment law, I am appointed to automobile cases nearly 99% of the time.  My career started at Farmers Insurance with Rick Pedersens' office and I love seeing attorneys from that office, the adjusters, the plaintiff's counsel I used to butt heads with.  It's all very nostalgic.  In addition, I get $150 for my time, which comes in handy for the little things my kids want like dance classes or sushi.

If you would like to try your hand at being an early settlement conference neutral the application is easy and is available here: http://www.scscourt.org/forms_and_filing/forms/CV-5016.pdf

If you have any difficulty finding the form, you can go to the court's website and in the search box type in "Rule 4 neutral" and it should take you to a list which includes the information you seek.

It's a great help to the court and it's a great way to network.  In the event you want to become a mediator in the future, it's also great practice.

By the way, I liken mediations and early settlement conferences to being a grandparent:  You get to play with the case, and then they go home at the end of the day.  

Tags:  Civil Practice  mediation 

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High Technology News: President Obama Announces New Cybersecurity Initiatives

Posted By Georgina J. Suzuki (Jones), Thursday, February 5, 2015

This blog post has been cross posted from the High Technology Section Blog.

 

By Megan Baca, CIPP/US, and Georgina Jones Suzuki, CIPP/US

Ropes & Gray LLP

 

Last Tuesday in his State of the Union address, President Obama indicated that one of his priorities this year will be cybersecurity – in particular, legislation to meet the evolving threat of cyber-attacks, combat identity theft, and protect children’s privacy. The President intends to introduce a Personal Data Notification & Protection Act, to replace the patchwork of state laws governing data breach notification with a national standard that would require companies to report a data breach to customers within 30 days. The legislation would also criminalize overseas trade in stolen identities. The White House will also introduce a revised Consumer Privacy Bill of Rights, building on its 2012 proposal which has since received input from the Department of Commerce. Another key legislative goal will be a Student Digital Privacy Act, aimed at preventing companies from selling student data to third parties for purposes unrelated to education, such as targeted advertising. This bill will be modeled after a California statute enacted last year, the Student Online Personal Information Act. In addition, the White House has updated a legislative proposal to promote the sharing of cyber threat information between the private sector and government.

 

Cybersecurity laws are more likely to see bipartisan support in Congress, especially compared to other polarizing issues. However, the specific form of any legislative proposal will affect such bill’s prospect for Congressional passage. We may have a glimpse very soon into what such legislation may look like, as a House Energy & Commerce subcommittee will hold a hearing on data breach legislation on January 27. More information about these White House proposals is available here and here.

 

Tags:  Cybersecurity  High Technology 

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more Calendar

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Barristers' Annual Judges Luncheon

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Knowing When To Accept A Case and When It's Time To Say Goodbye.

8/23/2018
Disability and ERISA Issue Spotting for Labor Law Attorneys

Recent Recognitions
Steven B. Haley2017 Professional Lawyer of the Year
Hon. Julie A. Emede2017 Outstanding Jurist of the Year

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